Memorandum in Support

A New York Criminal Lawyer said that, the New York State recently enacted an amendment to its Criminal Procedure Law granting victims of certain sex crimes the right to require the convicted defendant to submit to HIV related testing and the complainant in this case has applied for an order directing that the defendant submit to human immunodeficiency (HIV) related testing.

A New York Sex Crime Lawyer said that, the defendant was indicted for Rape and Sodomy in the First Degree, “by forcible compulsion”, in violation of PL 130.35(1) and 130.50(1) and Sexual Abuse in the First Degree PL 130.65(1). Defendant testified at the Grand Jury inquiry and admitted that he and the complainant engaged in unprotected sexual intercourse and other sexual conduct but that it was consensual. Pursuant to a plea agreement, the defendant was permitted to enter a plea of guilty to Attempted Sexual Abuse in the First Degree as a reduction of the Sexual Abuse count and the first two counts alleging forcible sexual and deviate intercourse were dismissed by the People as unprovable.

A New York Sex Crime Lawyer said that, the defendant thus stands convicted of a criminal felony offense enumerated in Penal Law Article 130, in which an act of sexual intercourse is part of the underlying conduct, but for which “sexual intercourse” is not an essential element in its commission. The issue to be resolved is whether this factual scenario is encompassed by the mandate set forth in CPL 390.15(1)(a).

The issue in this case is whether the criminal defendant can be mandated to submit to human immunodeficiency (HIV) related testing.

The court in deciding the case cited Section 390.15(1)(a) of the Criminal Procedure Law provides in pertinent part: In any case where the defendant is convicted of a felony offense enumerated in any section of article one hundred thirty of the penal law, or any subdivision of section 130.20 of such law, where an act of “sexual intercourse” or “deviate sexual intercourse,” as those terms are defined in section 130.00 of the penal law, is required as an essential element for the commission thereof, the court must, upon a request of the victim, order that the defendant submit to human immunodeficiency (HIV) related testing.

The meaning and intendment of the statute is not clear from a simple reading of its provisions. Does the statutory requirement for HIV related testing of a defendant apply to convictions for any felony offense defined in Penal Law Article 130, and for the misdemeanor of Sexual Misconduct as defined in subds. (1) and (2) of Penal Law 130.20, which respectively require “sexual intercourse” and “deviate sexual intercourse” as essential elements or does the testing apply only to convictions for offenses defined in Penal Law Article 130 which have “sexual intercourse” or “deviate sexual intercourse” as essential elements? Two important and competing public policy considerations are impacted by adoption of either an expansive or limited reading of the statute. First, the strictly limited legislated authority to compel performance of sensitive, highly confidential HIV related testing and disclosure.

Inasmuch as the criminal statute is not clear on its face, resort to other means of interpretation is appropriate. The primary purpose in doing so is to ascertain the intention of the legislature in enacting the statute. To that end, Courts are advised to apply the established “system of legal hermeneutics,” fixed principles of interpretation of legislative enactments designed to “ascertain the meaning and intent of the law-giver.”

One of the fundamental considerations in statutory interpretation is “the general spirit and purpose underlying (a statute’s) enactment;” the construction which furthers “the object, spirit and purpose of the statute” is the one to be preferred. As an aid in finding this legislative purpose, extrinsic matters may properly be considered by the Court. Thus, “statements of the draftsman of the statute” may properly be considered in determining legislative intent. Here, there is a very brief legislative “Memorandum in Support” of the bill, apparently as initially introduced in the New York State Assembly.

Furthermore, the Memorandum summarizes certain of the proposed legislation’s provisions, in the following language: The order must be granted if the defendant has been convicted of a felony or misdemeanor sex crime involving criminal sexual intercourse under Article 130 of the Penal Law within six months prior to the application. The statute enacted into law contains no such six-month proviso. Moreover, the language ostensibly describing the scope of the proposed legislation’s testing provisions merely parrots the federally mandated minimum required for a state’s statute in order to qualify that state to share in the aforementioned federal grant. The statute enacted into law and being considered here does not contain the plain, straightforward wording suggested by the legislative memorandum. To the contrary, the complex structure and punctuation of the enactment suggests that the legislature intended something broader in scope than the mandated minimum.

Here, the placements of the several “commas” in CPL 390.15(1)(a) as enacted could provide insight into the intended scope of the statute. However, the comma is probably one of the most misused and controversial marks of punctuation. Many of us were taught that commas should reflect the pauses we make in speaking, but this approach leads to text littered with disruptive and unnecessary commas. In fact, commas are most valuable when they reflect the sentence’s underlying grammatical structure, serving as sign posts to help the reader quickly grasp the writer’s meaning Many comma ‘rules’ are open to debate, however, and editors disagree among themselves more about commas than about any other aspect of punctuation. The trend for many years has been toward ‘open’ punctuation, which means using as few commas as possible. The application of two long-recognized “rules” of proper comma usage to the structure of the first sentence of CPL 390.15(1)(a) helps to clarify the legislative intent.

It is concluded that the Legislature intended the requirement of HIV related testing to apply to a criminal defendant convicted of any of the felony offenses enumerated in Penal Law Article 130, or convicted of the Class A misdemeanor of Sexual Misconduct as defined by subdivision (1) or (2) of the Penal Law 130.20 and did not intend to restrict testing only to those felonies where intercourse is an essential element.

Adoption of this broader reading of the statute does not mean that testing should be ordered in every instance where the felony conviction is for a crime where intercourse is not an element. Rather this interpretation is employed so as not to unduly constrict the rights of the victim. The statutory definition of “victim”, set forth in CPL 390.15(1)(b), supports such a construction of the statute’s testing requirements.

By the plain words of the statute, a Court must order that defendant submit to HIV related testing “upon a request of the victim.” “Victim” is defined as “the person with whom the defendant engaged in an act of sexual intercourse or deviate sexual intercourse where such conduct with such victim was the basis for the criminal defendant’s conviction of an offense specified in paragraph (a) of” (subd [1] of CPL § 390.15). If a defendant is convicted of a felony enumerated in Penal Law Article 130 which does not have some form of sexual or deviant intercourse as an essential element, and there is nothing factually underlying the conviction in the record to establish the occurrence of some form of sexual intercourse, then no HIV related testing is mandated simply because the request for such testing will not have been made by a “victim”, as that term is defined in CPL 390.15(1)(b) and which is required by CPL 390.15(1)(a).

HIV related testing of the defendant is mandated. The criminal defendant has been convicted of a felony defined in Penal Law Article 130, and the person making the request fits the statutory definition of “victim”. She is the person with whom the defendant concededly engaged in an act of unprotected sexual intercourse, and that conduct with her is the basis for this defendant’s conviction by guilty plea. This “victim” is clearly one of that class of persons the Legislature intended to help when it enacted this statute.

In interpreting a statute, all parts of the statute are to be construed together, harmonized and given effect. The above construction harmonizes the realities of the plea bargaining process and the remedial purpose of the statute to lessen a particular trauma for victims of sex crimes. At the same time, this holding will not unreasonably infringe upon a highly protected substantive right of a defendant or require “the doing of a senseless thing”. Needless and unwarranted testing will therefore not occur while, at the same time, genuine “victims” will reap the remedial benefits of the statute, based upon what admittedly has happened. The remedial benefits of the statute for sex crimes victims will rightly be dependent upon the conduct which actually occurred between the criminal defendant and the victim, and not solely upon the particular elements of a felony sex offense for which an agreement has been reached through of the plea bargaining process.

The legislature has specifically made the provisions of CPL 390.15 applicable to “persons convicted and adjudicated on and after (August 1, 1995).” In the instant case, the defendant entered his plea of guilty to the reduced felony charge after the effective date of the statute. By its terms, the legislature intended the provisions of the statute to apply to this defendant (and to others similarly situated). That the conduct which underlies the criminal defendant’s conviction (and therefore forms the basis for any HIV related testing to be ordered) occurred prior to the effective date of the statute does not alter the statute’s applicability herein. That particular factual circumstance does not implicate the federal constitutional prohibition on ex post facto laws.

The statute in issue here is not penal in nature. It is decidedly not punitive, in either purpose or effect. As already discussed at length above, the statute is intended, not to punish, but to accomplish another legitimate governmental purpose–to ease the trauma of victim of a sex crime with respect to the HIV related disease. Moreover, the proper inquiry is not whether HIV related testing places a burden on the convicted criminal defendant, but rather whether it makes more burdensome the punishment for his crime. It cannot rationally be argued that a blood test for AIDS is punishment per se. The intrusion is slight, and involves virtually no risk, trauma or pain. “Whatever slight discomfort or inconvenience criminal defendant might experience from the drawing of blood does not rise to the level of punishment.”

The testing provisions of CPL 390.15 clearly do not constitute an ex post facto enhancement of punishment. That the compelling of a highly sensitive and confidential HIV related blood test might arguably be viewed as a retrospective infringement upon the convicted defendant’s “substantial protection” or “personal right” is, in view of the legitimate, non-punitive purpose and effect of this remedial statute, irrelevant for purposes of ex post facto analysis. The absence of any additional punitive purpose or significant punitive effect removes CPL 390.15 from the ambit of the ex post facto clause.

Accordingly, based upon the foregoing, pursuant to CPL 390.15(1)(a), the defendant is directed to submit to HIV related testing in accordance with the order to be issued herewith.

If you are involved in a rape case, seek the assistance of a New York Sex Crime Attorney and New York Criminal Attorney at Stephen Bilkis and Associates in order to defend your case.